IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11065
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAROLD ELLSWORTH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CR-30-1-Y
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April 10, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Darold Ellsworth appeals his sentence of 139 months’
imprisonment and three years’ supervised release after pleading
guilty to possession of Ephedrin with intent to manufacture
methamphetamine. He argues that the district court erred by
increasing his offense level based on the quantity of drugs and
his possession of a weapon.
This court specifically rejected Ellsworth’s argument that
Apprendi v. New Jersey, 530 U.S. 466 (2000) rendered 21 U.S.C.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-11065
-2-
§ 841(b) facially unconstitutional. United States v. Slaughter,
238 F.3d 580, 582 (5th Cir. 2000). Apprendi is not authority for
invalidating Ellsworth’s sentence for the additional reason that
Ellsworth’s sentence of 139 months’ imprisonment and three years’
supervised release does not exceed the statutory maximum of
twenty years provided in 21 U.S.C. § 841(d)(1). United States v.
Keith, 230 F.3d 784, 787 (5th Cir. 2000) (“[A] fact used in
sentencing that does not increase a penalty beyond the statutory
maximum need not be alleged in the indictment and proved to a
jury beyond a reasonable doubt.”)
As the Government correctly points out, Ellsworth’s sentence
was not determined based on drug quantity and weapon possession
as he contends. Ellsworth was determined to be a career
offender, and his offense level was determined based on the
career offender provisions of U.S.S.G. § 4B1.1, making
Ellsworth’s arguments on appeal irrelevant.
AFFIRMED.